Chile Leads The Way On Intermediary Liability Protections

from the european-commission-please-take-note dept

As Techdirt reported, the European Commission is conducting a major consultation on the "procedures for notifying and acting on illegal content hosted by online intermediaries" that could radically affect the liability of online service providers in the European Union. Other parts of the world are doubtless examining this area too, and one at least -- Chile -- has already come up with a novel approach.

This emerged as part of a major overhaul of its copyright laws that was required as the result of a bilateral trade agreement with the US. The legislation is wide ranging, including copyright enforcement (sadly, the usual over-the-top stuff, like $100,000 fines for repeat offenders, and allowing retail value to be used for compensation calculations), but a rather enlightened set of copyright exceptions. Here's how a 2010 WIPO article on Chile's new law broke them down:

Acts of reproduction, adaptation, distribution or public communication of works will be considered lawful if done for the benefit of disabled persons where normal access to such works is not available.

Under certain conditions, non-profit libraries and archives may reproduce works that are no longer obtainable in the market. These institutions may also make electronic copies of works from their collections available for study at user terminals.

Reverse engineering activities are allowed on software, but only for compatibility purposes and research and development – or to test, investigate or correct the operation and safety of software.

Satire or parody is considered lawful if it makes an artistic contribution that sets it apart from the work or performance to which it refers.

It is lawful to reproduce or communicate a work to the public in order to comply with judicial, administrative and legislative proceedings.

Chile's comprehensive regulations governing the liability of ISPs, the first in Latin America according to the WIPO magazine, have now been analyzed in detail by the Center for Democracy & Technology, which provides the following summary:

A cornerstone of the US legislation is a private notice-and-takedown system, under which the liability protections of service providers are contingent on those providers complying with rightsholdersʼ formal notices to take down allegedly infringing material. Chileʼs law does not include such a private notice-and-takedown system; instead, a court order is required to compel blocking or removal of infringing content. Due to concern over the protection of Internet users' constitutional rights, the Chilean National Congress rejected several amendments that would have introduced a non-judicial takedown procedure. The law thus strikes a different balance than the DMCA -- one that is arguably more favorable to Internet free expression and innovation -- with implications for rightsholders, intermediaries, and Internet users.

The rest of the short CDT report (pdf) explores in detail the new Chilean law. It's well worth reading in order to appreciate the way the Chilean lawmakers took pains to safeguard free expression and to provide plenty of scope for innovation. Here's one important point that it highlights:

as under the DMCA and the ECD, the liability protection afforded by Chileʼs law is not contingent on service providers monitoring the data they transmit, store, or refer to, nor are service providers required to actively seek out facts or circumstances indicating illegal activities

Let's hope the European Commission takes note of this approach when it draws up its own proposals in the wake of the consultation, and that it requires a similarly active role of the courts in blocking or removing illegal content hosted by online intermediaries.

Reader Comments

" instead, a court order is required to compel blocking or removal of infringing content."

Don't you think that is truly screwed up? Can you imagine the cost and effort required to deal with a single blatant copyright infringement case, as well as the time it would take to get the job completed?

It seems like an entirely unfair tilting of the balance towards widespread infringement, with little for rights holders to get back. What a crock!

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Due process? Not really - when you think that all the process is only to get a removal, not a settlement. That means putting it up takes a second, taking it down could take a year, and there would be no liability created.

for once, there does at least appear to have been a bit of common sense used. also, the entertainment industries haven't had everything their way, with a little consideration being given to the public and to ISPs, rather than the entertainment industries just sitting back and expecting everyone else to do the work for them at their own expense, whilst getting all the 'benefits'

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Innocent until proven guilty, sounds familiar? I know you prefer it the other way around - but only when it suits your interests. I bet you'd cry bitter tears if you got caught up in a system where you get accused and have to prove you're innocent...

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You know, they could do it as they did BEFORE the DMCA, when the could not just send a takedown notice.

You'd mail the user politely that he'd infringe on your rights, and he should take the offending content down. If nothing happened, you'd mail the user with the ISP in the Cc. And in 95% of all cases, this worked.

Actually, that's how it still works in most of europe.

And if nothing happened, the content was still there, you get a judge to sign a subpoena instructing the ISP to take down the content of the user. And that's how we do it still in most of Europe.

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Ah, but you see, that sort of system requires actual work, and that just takes all the fun out of robo-censoring things.

Much easier to just send out automatic takedown notices in the thousands(per day), in the good belief that at least a couple of them might actually be infringing, with everything else collateral damage and shrugged off with a 'mistakes happen'.

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"You know, they could do it as they did BEFORE the DMCA, when the could not just send a takedown notice. "

Yes, except that before DMCA the posting site had actual liability. This seems to set it back to pre-DMCA, but with the service provider type exceptions in place. Basically, service providers would have no risk, no liability, and it would take ages to get a court to act - with no liability attached.

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

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You're arguing about countries that aren't under the DMCA, and might still have liability under their jurisdictions. None of the questions you ask are relevant to the conversation, and most are willful ignorance on your part.

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"Why should rights holders rights be ignored by the courts?"
It is not ignored by the courts. We want it to be dealt with by courts. Courts use due process. Robots do not.

"Why should rights holders have no recourse against sites that profit from their content?"
Right holders have recourse, just go to court.

"Why should anyone be allowed to use copyright content without first proving they have a license?"
Because copyright is a nice gesture that we, as a society, extend to content creators so that they will be encouraged to create more content for us to enjoy. It is not a natural right, and in fact it restricts natural rights.

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Funny how he thinks that people under SOPA could have just gone to court to defend themselves from reckless accusations of copyright infringement, but he also thinks that rightsholders going to court is too much of a hassle.